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Ellen Eveline Wells Vs. John Dickinson and Co., Ltd. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1924Cal868
AppellantEllen Eveline Wells
RespondentJohn Dickinson and Co., Ltd.
Cases ReferredSutton v. Temple
Excerpt:
- .....into possession on 1st june 1920. on the 14th october 1920 the defendant company applied to the rent controller appointed under the calcutta rent act and on the 30th march 1921 the rent controller fixed a standard rent for the premises at rs. 275 per month including the furniture. the plaintiff applied to the tribunal which decided that the controller had no power in fixing a standard rent to include hire of furniture and fixed it at rs. 200 per month for the premises unfurnished. since that time rent has been paid at the rate so fixed and the plaintiff claims to recover the balance of the amount agreed to be payable under the agreement of the 3rd february 1920.2. this raises an interesting point of law under the act, and the contentions submitted on behalf of the plaintiff are two :.....
Judgment:

Buckland, J.

1. This is a suit to recover the sum of Rs. 5,860 as rent of a furnished flat in No. 12, Loudon Street and a small amount of Rs. 86-7-0 which is not in dispute. The material facts as to which also there is no dispute are as follows : - By a letter dated the 3rd February 1920 the Defendant Company agreed to take 'the lower flat of the house at the above (12, Loudon Street) address at Rs. 600 a month including furniture' from the 1st of May next till the 31st October 1921. The Defendant Company entered into possession on 1st June 1920. On the 14th October 1920 the Defendant Company applied to the Rent Controller appointed under the Calcutta Rent Act and on the 30th March 1921 the Rent Controller fixed a standard rent for the premises at Rs. 275 per month including the furniture. The plaintiff applied to the Tribunal which decided that the Controller had no power in fixing a standard rent to include hire of furniture and fixed it at Rs. 200 per month for the premises unfurnished. Since that time rent has been paid at the rate so fixed and the Plaintiff claims to recover the balance of the amount agreed to be payable under the agreement of the 3rd February 1920.

2. This raises an interesting point of law under the Act, and the contentions submitted on behalf of the Plaintiff are two : - (1) That the Act does not apply to a furnished flat (or house), and (2) that if the Rent Controller (or Tribunal) - has power to fix a standard rent in respect of premises let furnished, but upon the basis of their being unfurnished, the lessor is still entitled to the full sum agreed upon.

3. The preamble of the Act states that it is expedient to restrict temporarily the increase of rents in Calcutta. 'Premises' are defined by Section 2(e) as follows : - 'Premises' means any building, or part of a building or hut let separately for residential, charitable, educational or public purposes, or for the purpose of a shop or an office, including any land appertaining thereto and let therewith.' This section also provides that the expression shall include a room or rooms in a hotel, boarding house or lodging house, but that has no application to this case. Sub-section (f) defines standard rent in relation to any premises as : - (i) The rent at which the premises were let on 1st day of November 1918, or where they were not let on that date, the rent at which they were last let before that date and after the 1st day of November 1915, with the addition, in either case, of ten per cent, on such rent; (ii) in the case of any premises which were or shall be first let after the 1st day of November 1918, the rent at which the premises were or may be first let.

4. Then follows a third definition of standard rent by reference to Section 15 in the following words : - (iii) In the cases specified in Section 15, the rent fixed by the Rent Controller. The three definitions are distinct so far as this section is concerned.

5. Section 15 contains six sub-sections, some of which are again sub-divided, in particular Sub-section (3). Sub-sections (1), (2), (4) and (5) and (6) are matters of procedure and do not affect the powers of the Rent Controller Sub-section (3) supplies the third definition in Section 2(f)(iii), where it would more properly find a place. It begins : - 'In any of the following cases the Controller may fix the standard rent at such amount as having regard to the provisions of this Act and the circumstances of the Base he may deem just.'

6. This allows a discretion to the Controller, the only limits upon which appear to be those imposed by the words quoted and the sub-sections stating when such discretion may be exercised. These are five in number and they state sets of circumstances to which the bard and fast rules provided by Section 2(f)(i) and (ii) might not be applicable or appropriate.

7. These stated in Sub-section (3)(6) alone can have any application to this case. Its terms are as follows : - Where in the case of any premises let furnished, it is necessary to distinguish, for the purpose of giving effect to this Act, the amount payable as rent from the amount payable as hire of furniture.

8. The effect of this sub-section will have to be considered, but before doing so I will deal with the first proposition, that the Act does not apply to a furnished flat (or house), for this point is within a narrow compass.

9. The argument addressed to me on behalf of the Plaintiff is that furnished flat (or house) is not within the term 'premises' as there defined. A flat or house certainly is within the definition; with equal certainty furniture is not, and a 'furnished flat' is referred to by learned Counsel for this purpose as though it were a third thing and a 'composite article' as he has termed it.

10. I cannot accept the proposition that a furnished flat is necessarily a distinct, concrete, indivisible thing, though it may be so treated either in a statute, as in the case of the English Rent Restriction Act where it is referred to as a dwelling house let at a rent which includes payment in respect of use of furniture, 5 and 6 Geo. V Chap. 97, Section 2(2), 10 and 11 Geo. V Chap. 17, Section 12(2)(i), or by agreement between parties where the rent includes a sum for the use of furniture as in Sutton v. Temple [1843] 12 M. & W. 52, where Lord Abinger, C.B., referred to such an agreement on a contract of a mixed nature for the letting of a house and furniture.

11. Without some indication that the Rent Act so regards the combination of a flat or house and furniture, I do not think I should be justified in holding that so far as the combination includes 'premises,' the sections of the Act which refer to 'premises,' do not apply to a furnished flat or house. In this view the broad contention that no order can be made by the Rent Controller standardizing the rent of 'premises' where the 'premises' are comprised in a furnished flat falls to the ground. The expression I have employed is equally applicable to the certification by the Controller of the standard rent in cases where Section 2(f)(i) and (ii) apply and to cases where he fixes it under Section 15(3).

12. What, however, may be the effect of an order by the Rent Controller standardizing the rent in such circumstances is another matter, and presents a problem of which it is not easy to find the solution.

13. As observed, the Plaintiff's case is that notwithstanding the standardization of the rent of the 'premises,' she is entitled to recover the whole monthly sum agreed to be paid.

14. The Defendant Company's contention is that the agreement between the parties is determined by the order of the Tribunal, and the Plaintiff may not recover more for rent of the premises than the sum allowed by that order, which imposes a new obligation on the tenant, who becomes a statutory tenant. This leaves the question of the furniture untouched, for it is indisputable that the Tribunal was right in holding that the Controller had no power to fix the hire of the furniture, and it has not been argued to the contrary. In order to provide for this lacuna, it is contended that, as the parties have not entered into new agreement as to the furniture, and presumably cannot agree, it is for the Court to assess a reasonable rate at which hire of the furniture shall be paid.

15. The foregoing argument is based on Section 15(3)(b). I do not say that the Tribunal (or Controller, who for the present purpose are identical) may not invoke that sub-section when an application is made to standardize the rent of premises lot furnished at the time when the application is made. But since no order can be made as regards the hire of the furniture, the question is, what is the effect of an order standardizing the rent of premises let furnished.

16. If the agreement is determined it would be open to the lessor to remove his furniture. But, though he has submitted that the agreement would be determined, learned Counsel for the Defendant Company would not accept this proposition, and contended that the lessor would be under the original obligation to provide furniture, and that in order to arrive at the sum payable for its use, the parties would be compelled either to agree or to litigate. In short, the tenant is to have the benefits of the agreement and of the Act, and the Court may have to perform the functions of a valuer and make a new contract between the parties.

17. There is nothing in this or in any other section expressly providing that the agreement between the parties shall be determined. Nor can I construe the Act or the section as so providing by implication. Such a construction could only be placed upon the Act or the section if it were so provided in the clearest language, and the Act must not be taken as meaning more than it says.

18. Section (4)(i), which provides that rent in excess of the standard rent shall, notwithstanding any agreement to the contrary, be irrecoverable has not been referred to, nor could it be without begging the question, for it refers to the rent of the 'premises.'

19. The Act creates difficulties of which it provides no solution. Recourse must therefore be had to general principles so far as they do not conflict with the Act and do riot make its terms insensible.

20. The solution, I think, is to be found in the agreement between the parties. That agreement is such a document as Lord Abinger, C.B. in Sutton v. Temple [1843] 12 M. & W. 52 described as a 'mixed contract,' and, as there pointed out, it is only by virtue of such a contract that the obligation to supply goods and chattels suitable to the occupation arises. Learned Counsel's contention that though the agreement is determined by the order of the Tribunal, the lessor must leave the furniture, involves the same view of the contract. The parties themselves have chosen so to treat the subject-matter of their agreement. Apart from what I have said as to the construction of the Act, the view which parties express in their written contract is one to which effect should be given if that can be done consistently with the words of the Act.

21. The Tribunal's order relates to the 'premises,' that is only a part of the subject-matter of the agreement. Though the order, of the Tribunal stands, and it may be that in other circumstances advantage could be taken of it, as to which I express no opinion, it is, in my opinion, ineffective as touching this agreement.

22. Since this solution discards the only application of Section 15(3)(b) which learned Counsel has propounded, I propose to test it further by seeing what useful purpose that section may serve.

23. Comparison between Section 2(f)(i) and (ii) and Section 15(3)(b) leads to the conclusion that the former are not intended to apply to furnished premises, and that where applicable the arbitrary rule supplied by the former is to be followed, and the discretion may be exercised in certain cases where that arbitrary rule is inapplicable. Section 15 does not extend the scope of the Act. The Act also appears to regard the rent of premises on 1st November 1918 as the normal rate to be paid.

24. I will consider the effect of these sections in four concrete instances.

(A) Premises let unfurnished on 1st November 1918 and let unfurnished at the time when standardization is applied for. This presents no difficulty, and application of the sections is obvious.

(B) Premises let furnished on 1st November 1918 and let unfurnished when standardization of rent is applied for.

25. If Section 15(3)(b) is intended, as has been argued to apply to cases where the premises are let furnished at the time, when standardization is applied for, that section would not apply to this case. Nor could the Controller make an order certifying the standard rent in accordance with Section 2(f)(i), for that contemplates the rent of unfurnished premises on 1st November 1918.

26. Here Section 15(3)(6) could usefully be invoked to ascertain the rent of premises unfurnished on 1st November 1918, and without doing so it is difficult to see how the Controller could proceed at all.

(C) Premises let unfurnished on 1st November 1918 and let furnished when standardization is applied for.

(D) Premises let furnished on 1st November 1918 and, let furnished when standardization is applied for.

27. A comparison of what would occur in these two instances leads to a singular result as regards the suggested determination of the agreement by Section 15(3)(b). In (C) the standard rent would be ascertained automatically by reference to the rent on 1st November 1918. In (D) the standard rent would be a matter of discretion and to fix it the Controller, as in (B), would discriminate between the amount payable as rent and the amount payable as hire of furniture on 1st November 1918 that is to say, only in (D) would he invoke Section 15(3)(b).

28. Now whatever may be the effect, as regards an existing agreement, of invoking Section 15(3)(b) in fixing the standard rent, there could be no such effect in (C), because in that instance, the standard rent would have been certified without reference to that section. Yet in both (C) and (D) the conditions to which the standard rent when certified or fixed have to be applied are the same. Therefore, if the effect of invoking Section 15(3)(b) in fixing the standard rent is to determine an existing agreement to let a furnished house in (D) such agreement would be determined, but in (C) it would not.

29. This shows that Section 15(3)(b) was not intended to have that effect, for, if it were, it is inconceivable that where the rent of premises let furnished is arrived at through Section 2(f)(i), the Act should have omitted to make a similar provision.

30. The words 'let furnished' in Section 15(3)(b) cannot ordinarily be taken as referable to the time when standardization is applied for. The object of that section is to enable the Controller to fix the standard rent. If a thing has to be measured by a standard the standard cannot be arrived at from such thing itself. So, to distinguish between the amount payable as rent and the amount payable as hire of furniture at the time when standardization is applied for will not advance the ascertainment of the standard rent. The distinction must be made with reference to some other time. The act generally takes November 1918 as the appropriate time, though it is not necessarily so as regards Section 2(f)(iii) read with Section 15(3)(b).

31. This seems to be the proper application of Section 15(3)(b), and if it is taken as referable to the time when standardization is applied for in order to fix the standard rent it is meaningless.

32. In my judgment, though the Controller or Tribunal, as the case may be, may make an order standardizing the rent to be paid in respect of premises, when such premises have been let at a sum which includes payment for use of furniture, the parties to that agreement remain under their original liability, whatever effect such order may have as between other parties or in other circumstances. The Plaintiff is entitled to succeed and there will be judgment for the sum claimed with costs on scale 2 and interest on judgment at 6 per cent.


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